At its May 28 meeting, Berkeley City Council discussed a smoke-free ordinance that could become an infringement on residents’ rights. The council must tread carefully in the future if it chooses to follow through on it.
The proposed ordinance, which would ban tobacco smoking in leased multiunit housing — such as apartments, fraternities, single occupancy hotel rooms and senior living facilities — aims to protect Berkeley residents from exposure to secondhand smoke. The ordinance has an important goal but brings up some serious concerns.
For one thing, the council must recognize that there is a difference between student multiunit housing, like cooperatives and fraternities, and regular apartment buildings. In communal living situations like student cooperatives, residents enter with the understanding that they could be exposed to secondhand smoke or that by living in a communal space, they might have to relinquish their right to smoke.
In comparison, residents of apartment buildings do not have a choice about whether or not their neighbors smoke, but they can make a choice to keep their living situations smoke-free. The ordinance fails to consider the difference between the two living situations and should account for this difference in its final language.
Further, the ordinance could disproportionately impact lower-income and temporary city residents who cannot afford to own a home. These city residents often occupy a large percentage of leased housing and do not have a choice about where they get to live in the city due to financial circumstances.
If caught exposing other residents to secondhand smoke, residents would have to pay a fine of $100 to $250 for each occurrence. This could hit low-income residents the hardest.
The goal of the law is admirable, as it attempts to limit the effects of secondhand smoke around the city. But if people cannot smoke in their own homes and have been largely barred from smoking in public places, the ordinance could be seen as a criminalization of smoking altogether. The city should consider telling apartment landlords to designate certain areas for smokers so that they do not impact the health of unheeding residents but can still choose to smoke.
There are a variety of ways of moving toward a city where residents are not involuntarily exposed to secondhand smoke; this might not be the right one.